In re Panel Case No. 17289

October 16, 2003

IN RE PANEL CASE NO. 17289

SYLLABUS BY THE COURT

Decision by the Director of the Office of Professional Responsibility to admonish lawyer for making frivolous claims on behalf of his client in a civil action in violation of Minn. R. Prof. Conduct 3.1 was not clearly erroneous.

Considered and decided by the court en banc without oral argument.

Affirmed.

Per curiam

OPINION

Appellant was issued an admonition by the Director of the Office of Professional Responsibility for submitting frivolous claims on his client's behalf in violation of Minn. R. Prof. Conduct 3.1. An admonition is a private sanction for violations of lawyer ethical rules. A panel of the Lawyers Board on Professional Responsibility affirmed the admonition. Appellant appeals to this court to overturn that decision. We affirm the admonition.

Appellant was admitted to the practice of law in the State of Minnesota on October 17, 1969, and is currently engaged in the practice of law here. Appellant has a history of disciplinary actions. In 1985, he was admonished for a conflict of interest, failure to deposit client funds in his trust account, and failure to promptly deliver client property. In 1991, he was indefinitely suspended from the practice of law for numerous ethics violations, including misappropriating funds from his client trust account, improperly permitting non-lawyers to withdraw funds from the account, depositing personal funds into the trust account to avoid paying withholding taxes, falsely certifying that he kept proper trust books, and knowingly serving a client's false answer to an interrogatory. In 1994, his suspension was continued because he failed to take reasonable remedial measures after learning that his client had testified falsely in a deposition. Appellant was reinstated to the practice of law in 1996. In 2000, he was again admonished, this time for making unsupported allegations against opposing counsel.

Because the admonition subject to review here is directly related to a civil action in which appellant served as counsel, a detailed factual summary of the civil case is in order. The admonition is the result of appellant's conduct in a civil action in which he represented M.G.D., who alleged assault and defamation by H.L.B. The action arose out of a burglary incident at H.L.B.'s cabin.

On September 14, 1997, at approximately 5:00 a.m., M.G.D., who was then a minor, drove two male passengers to a cabin owned by H.L.B. The two passengers intended to break into the cabin, promising M.G.D. they would give him half of anything they took from it. M.G.D. waited in his car while the two passengers pried open a window screen and entered the cabin.

Approximately two to three minutes later, the passengers came running out of the cabin toward the car. They told M.G.D. that alarms were going off and they should leave. According to M.G.D., the passengers did not have any property in their possession when they ran out of the cabin.

At the same time, H.L.B., who lived only two miles away from the cabin, received a call from his alarm company alerting him that there was a possible break-in at the cabin. H.L.B. requested that the police be called and then drove to the cabin. Upon arriving at the cabin, H.L.B. saw M.G.D.'s car parked in front of the cabin. H.L.B. stopped his car on the road, attempting to block the road with his car. H.L.B. then got out of his car, taking with him an uncased shotgun. The shotgun was loaded with shells used by H.L.B. for goose hunting.

H.L.B. confronted M.G.D. and his two passengers, who by this time had left the cabin and returned to the car. H.L.B. attempted to detain the suspected burglars until the police arrived, but M.G.D. started to drive his car around H.L.B., at which point H.L.B., who was only a few feet away from M.G.D., shot at the left rear tire of M.G.D.'s car. M.G.D. stopped his car and together with the two passengers got out of the car and started yelling at H.L.B. The four individuals yelled at each other for approximately 30 seconds. After H.L.B. told M.G.D. and the two passengers that the police were on their way, the two passengers ran away from the scene. M.G.D. remained at the scene with his car. A short time later, another car approached on the road. H.L.B., wishing to move his car so the other car could pass by, got into his car, set down his shotgun, and began to move his car to the side of the road. Upon seeing H.L.B. move his car, M.G.D. got into his car and sped away from the cabin. As M.G.D. drove away, H.L.B. fired at least two additional shotgun blasts at M.G.D.'s car. H.L.B. then got into his car and chased M.G.D., but soon gave up the chase.

Upon arriving at the scene, the police examined the cabin for missing items. The police concluded that certain items had been removed from an upstairs cabinet. H.L.B. told the police that a TV and VCR were missing, and subsequently provided receipts for the purchase of these items.

The next day, a local police officer responded to a call from M.G.D.'s parents' residence, informing the officer that M.G.D. may have been involved in the incident. The officer questioned M.G.D. and examined his car. The officer observed that the left-rear hubcap was missing and concluded that it had probably been shot off by a shotgun blast. The officer also observed that there was a small hole on a valance on the rear of the ...

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